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Many Oregon employers may soon need a crash course on military leave: The largest deployment of Oregon National Guard troops since Sept. 11, 2001 is scheduled to take place in May. More than 3,500 men and women will be leaving their families behind for a yearlong tour of duty, more than doubling the previous largest deployment (1,650 in September 2005 to New Orleans) in the last eight years. Since military family members also have important employment rights, it is not a stretch to conclude that more than 10,000 Oregon workers will be protected by new and expanded employment laws in the next 12 months alone. Therefore, all employers should be aware of these four basic tenets:

1. Do not discriminate. This one is the easiest to remember. Under the federal Uniformed Services Employment and Reemployment Rights Act (USERRA), those workers who are serving or have served in the military are considered a 鈥減rotected class.鈥� That means you can’t make employment decisions about them based on that status. It would be illegal for you to refuse to hire, terminate, demote, discipline, retaliate against, or take any other adverse action against the employee because of their military status. One of the country’s largest employers, Target Corporation, found out the hard way that such claims can be costly. In 2007, a local store manager was demoted after returning from a two-week military leave with the Oregon National Guard and then eventually fired after complaining about the demotion. The ex-employee won a lawsuit and was awarded close to $1 million in damages. A jury in the U.S. District Court for the District of Oregon awarded the man $85,000 in regular damages and a whopping $900,000 in punitive damages, based largely upon the timing of the employer’s discharge decision.

2. You must reinstate. USERRA does not only require employers to treat military employees in a non-discriminatory manner; it also requires that employers keep open most jobs left vacant by departing military employees and reinstate the employees to those jobs upon their return.

Even if you have hired replacement help to fill in the gap left by the departure, you have an affirmative obligation to reinstate the military employee. Employers are often surprised to learn that the reinstatement obligation also includes a few twists. One is the requirement of the 鈥渆scalator principle,鈥� which means that you don’t just have an obligation to reinstate, but to assume where the employee would have risen in the ranks had he or she not been deployed and then reinstate him or her to that heightened position. Another is that once re-employed, certain returning service members may not be discharged, except 鈥渇or cause,鈥� almost as if he or she were a unionized employee. For service members whose leave exceeds 180 days, this protection lasts for one year following their return. For service members whose leave lasted 31 to 180 days, this protection lasts six months. This additional protection does not apply to service members who take leave for 30 days or less. Finally, during the leave itself, employers must pay the company’s share of health insurance premiums during leaves of 30 days or less, and provide COBRA continuation for longer commitments.

3. You must offer family leave. The Family and Medical Leave Act (FMLA) also includes protections for military personnel and their family. A new category of leave 鈥� 鈥淢ilitary Caregiver Leave鈥� 鈥� went into effect in 2008, but was recently clarified by regulations that went into effect in January. This provides an eligible employee up to 26 workweeks of leave per year to care for a 鈥渃overed service member鈥� with a 鈥渟erious injury or illness.鈥� To be eligible, an employee must be the spouse, son or daughter, parent, or next of kin of a covered service member. The term 鈥渟erious injury or illness鈥� means an injury or illness incurred in the line of duty that may render the member medically unfit to perform the duties of the member’s office, grade, rank or rating.

4. You must accommodate emergencies. Finally, in January, a new law took effect that provides for 鈥淨ualifying Exigency Leave鈥� for service members and their families. An eligible employee is entitled to up to 12 weeks of unpaid leave for 鈥渜ualifying exigencies鈥� arising out of a 鈥渃overed military member’s鈥� active duty status (or call to active duty) in the armed forces in support of a contingency operation. Again, eligible employees include the spouse, son or daughter, or parent of a 鈥渃overed military member鈥� on active duty or call to active duty status.

There are eight categories of exigencies that would qualify for leave, including short-notice deployments, leave to attend military events and related activities, child care and school activities, financial and legal arrangements, counseling, rest and recuperation and post-deployment activities (such as arrival ceremonies, reintegration briefings, or other official ceremonies).

Most Oregon employers will want to do the right thing and accommodate their employees or family members who are supporting our country in important service. However, many employers do not realize all that is required of them in this regard. As long as employers remember these four basic rules, they will be well on their way to complying with their legal obligations.

Rich Meneghello, a partner at the Portland office of Fisher & Phillips LLP, is dedicated to representing the interests of management. Contact him at 503-205-8044 or [email protected].